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Punishment

While there is no modern theory of punishment that cannot, in some form or other, be traced back to biblical concepts, the original and foremost purpose of punishment in biblical law was the appeasement of God. God abhors the criminal ways of other nations (Lev. 20:23) whose practices the Israelites must not follow (ibid.) and from whose abominations they must not learn (Deut. 20:18); by violating His laws, His name is profaned (Lev. 22:31–32); and not only are criminals abhorrent to God (Deut. 18:12; 22:5; 25:16; 27:15), as well as crimes (Lev. 18:27–29), but God's own holiness obliges man to be holy like Him (Lev. 19:2). By taking "impassioned action" (Num. 25:13) to punish violators of His laws, expiation is made to God and God's "fierce anger" (Deut. 13:18) turned away from Israel (Num. 25:4). Closely related to the appeasement of God is another expiatory purpose of punishment: a crime, and more particularly the shedding of blood, pollutes the land – "and no expiation can be made for the land for the blood that is shed therein but by the blood of him that shed it" (Num. 35: 33). Excrement must be covered because the land being holy demands that "thy camp be holy,… "(Deut. 23:15), so that God would "see no unseemly thing" occurring there (ibid.).

Still another aspect is reflected in the talionic punishment of death for *homicide, as originally formulated: "Whoso sheddeth man's blood, by man shall his blood be shed; for in the image of God made He man" (Gen. 9:6). Man being created in the image of God, it is an affront to God to kill him and killing the killer is the only acceptable expiation to God. Similarly, purging Israel of the blood of the innocent (Deut. 19:13) by killing the killer appears to be necessary in order to avoid blood guilt attaching to the land and to the people forever (cf. Deut. 21:9; 19:10); and it is for this reason that a murderer must be taken even from God's very altar to be put to death (Ex. 21:14).

All talionic punishment as such reflects its underlying purpose, namely the apparent restitution of the status quo ante by inflicting on the offender the injury inflicted by him (Lev. 24:20) and by doing to him what he had done to another (Lev. 24:19). This sort of sanction (see *Talion), where the character and measure of punishment is precisely commensurate with those of the crime, is intended to represent exact justice. It was, indeed, by proving that this kind of "exact justice" necessarily involved unavoidable injustice, that some talmudical jurists justified the abolition of talionic punishment except for murder (BK 84a). And while they did not abolish it for murder, whether by reason of the many express biblical injunctions that murderers must be killed (especially Num. 35:31), or in order to retain the deterrent effect of the death penalty, many of them held that judges must do everything in their power to avoid passing death sentences (cf. Mak. 1:10), e.g., by rigorously cross-examining the witnesses long enough to have them contradict themselves or each other in some particular (Mak. 7a) and thus render their evidence unreliable (see *Evidence, *Witness). The warning was already sounded then that any reticence in imposing capital punishment would result in an increase of crime and bloodshed (Mak. 1:10). Maimonides comments on the talmudical discussion, that while it was true that the courts must always satisfy themselves that the incriminating evidence was credible and admissible, once they were so satisfied, they ought to order the execution even of a thousand men, day after day, if that is what the law (the Torah) prescribes (his commentary to the Mishnah, Mak. 1:10).

The most common purpose of punishment, as found in the Bible, is "to put away the evil from the midst of thee" (Deut. 17:7, 12; 19:19; 21:21; 22:24; 24:7). While such "putting away" is applied in the Bible to capital punishment only (which indeed constitutes the only effective total elimination), the principle underlying the elimination of evil, as distinguished from that of the evildoer (cf. Ps. 104:35 and Ber. 10a), provides a theory of punishment of universal validity and applicable to all criminal sanctions. It means that the act of punishment is not so much directed against the individual offender – who is, however, unavoidably its victim – as it is a demonstration of resentment and disapproval of that particular mode of conduct. By branding that conduct as worthy of, and necessitating, judicial punishment, it is outlawed and ostracized. Similarly, punishment is inflicted on the offender not so much for his own sake as for the deterrence of others: that all people should hear and be afraid (Deut. 17:13 – rebellious elder; 19:20 – perjury; 21:21 – rebellious son). From the point of view of criminal law enforcement policies, the deterrent aspect of punishment in Jewish law is already the most important of all: people who hear and see a man heavily punished for his offense are supposed to be deterred from committing the offense and incurring the risk of such punishment (they "will do no more presumptuously" – Deut. 19:20). Hence the particular injunction to have the offender impaled on a stake after having been put to death (Deut. 21:22), so as to publicize the execution as widely and impressively as possible; but note that the corpse must be taken off the gibbet before nightfall, "for he that is hanged is a reproach to God" and defiles the land (Deut. 21:23) – and no concession made to policies of law enforcement can derogate from the affront to God involved in killing and impaling a human being.

It is not only the principle known in modern criminology as "general prevention," the deterrence of the general public, but also that of "special prevention," the prevention of the individual offender from committing further crimes, that is reflected in Jewish law. It has been said that the imposition of capital punishment on such offenders as the rebellious son (Deut. 21:18–21), the rebellious elder (Deut. 17:12), the abductor (Ex. 21:16), and the burglar (Ex. 22:1) is justified on the ground that these are all potential murderers (cf. Maim., Guide 3:41); and rather than let them take innocent human lives, they should themselves be eliminated. That the deterrent effect of punishment on the offender himself was a consideration which weighed heavily with the talmudical jurists is illustrated also by the rule that where punishment had proved to have had no beneficial deterrent effect on the offender and he has committed the same or some similar offenses over and over again, he would be liable to be imprisoned and "fed on barley until his belly bursts" (Sanh. 9:5).

The talmudical law reformers also achieved the substitution for the ever-threatening divine punishment by the judicial punishment of *flogging, making it clear that whoever underwent judicial punishment would not be visited with any further *divine punishment (Mak. 3:15). They went so far as to lay down that even though God had Himself expressly proclaimed that a criminal would not be "guiltless" and escape divine wrath (Ex. 20:7; Deut. 5:11), the judicial authorities in imposing the flogging were authorized by the Torah itself to clear him: if God would never clear him, a court of justice could (Shevu. 21a). The measure of punishment must always conform to the gravity of the offense on the one hand, and the blameworthiness of the individual offender on the other: "according to the measure of his wickedness" (Deut. 25:2). Even here the talmudical law reformers found cause for some mitigatory improvement: they interpreted "wickedness" as the yardstick for the measure of punishment, as including also the physical capacity of the offender to undergo and suffer punishment (cf. Maim., Comm. Mak. 3:10 and Yad, Sanhedrin 17:1). In several instances, the particular turpitude of the offense is expressly stressed as reason for heavy penalties (e.g., "because she hath wrought a wanton deed in Israel" – Deut. 22:21; "it is wickedness" – Lev. 20:14); and in post-talmudic times, the imposition of severe punishments (such as *capital punishment) was always justified by stressing the severity of the particular offense and the public danger of mischief thereby caused.

Maimonides laid down that the gravity and measure of punishment are to be determined, first, by the gravity of the offense: the greater the mischief caused, the heavier must be the penalty; second, by the frequency of the offense: the more widespread and epidemic the offense, the heavier must the penalty be; third, the temptation prompting the offense: the more easily a man is tempted to commit it, and the more difficult it is for him to resist the temptation, the heavier must the penalty be; and fourth, the secrecy of the offense: the more difficult it is to detect the offense and catch the offender, the more necessary is it to deter potential offenders by heavy penalties (Maim., Guide 3:41).

BIBLIOGRAPHY:

E. Goitein, Das Vergeltungsprincip im biblischen und talmudischen Strafrecht (1893); S. Gronemann, in: Zeitschrift fuer vergleichende Rechtswissenschaft, 13 (1899), 415–50; J. Wohlgemuth, Das juedische Strafrecht und die positive Strafrechtsschule (1903); J. Herrmann, Die Idee der Suehne im Alten Testament (1905); I.S. Zuri, Mishpat ha-Talmud, 6 (1921), 1–27; A. Pomeranz, in: Ha-Mishpat, 3 (1928), 23–27; A. Buechler, Studies in Sin and Atonement in the Rabbinic Literature (1928); J. Lipkin, in: Haolam, 16 (1928), 281–3; T. Ostersetzer, in: Sefer ha-Shanah li-Yhudei Polanyah, 1 (1938), 35–60: H.H. Cohn, in: ILR, 5 (1970), 53–74. IN THE FRAMEWORK OF JEWISH AUTONOMY: S. Assaf, Ha-Onshin Aḥarei Ḥatimat ha-Talmud (1922); Dubnow, Hist Russ, index, S.V. Kahal Courts; I. Levitats, Jewish Community in Russia (1943), 198–217; Baron, Community, index; Baer, Spain, index S.V. Criminal Jurisdiction of Jewish Community. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:10, 65, 97, 119, 156, 180, 307, 423ff, 437, 438, 499, 558, 568, 649, 692, 693, 720, 11, 841, 111, 1464; idem, Jewish Law (1994), 1:9, 73, 109, 134, 173, 202, 367; 2:516ff, 534, 535, 608, 679, 698, 803, 854, 855, 888; 3:1029, 4:1739; idem, Jewish Law (Cases and Materials) (1999), 567–83; idem, "Ha-Ma'asar ba-Mishpat ha-Ivri," in: Sefer Ha-Yovel Le-Pinḥas Rozen (1962); M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest) (1986), (2), 329–45; B. Lifshitz and E. Shochetman, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 228–36; M. Frishtick, Anishah ve-Shikkum be-Yehadut (1986); A. Kirshenbaum, "Mekomah shel ha-Anishah ba-Mishpat ha-Ivri ha-Pelili," in: Iyyunei Mishpat, 12 (1987), 253–73; A. Desberg, "Ha-Hatra'ah, Mekor ha-Din ve-Ta'amo," in: Teḥumin, 12 (1991) 307–26; A. Enker, "Yesodot ba-Mishpat ha-Pelili ha-Ivri,": in: Mishpatim, 24 (1995), 177–206; S. Albeck, Yesodot ha-Averah be-Dinei ha-Talmud (1997), 100–40; M. Halbertal, Mahapekhot Parshaniyyot be-Hithavutan (1997), 128–44; M. Fogelman, "Ha-Nasi Lo Dan ve-lo Danim Oto," in: Be-Ẓomet ha-Torah ve-ha- Medinah, vol. 1 (1991).